Summary
In Penn Mutual Life Ins. Co. v. Nunnery, 176 Miss. 197, 167 So. 416 (1936), the wife-beneficiary was allowed to recover upon a finding that she killed the insured in self-defense.
Summary of this case from Franklin Life Ins. Co. v. StricklandOpinion
No. 31967.
April 13, 1936.
1. INSURANCE. That insured was drunk once would not indicate that he "used" intoxicating liquor to excess.
The word "used" in this connection means "to make use of, especially habitually or customarily for a regular custom; to practice or make a practice of."
2. INSURANCE.
False representation by insurer's representative inducing beneficiary of life policy to execute release, and on which representation beneficiary was justified in relying, would make release ineffective to bind beneficiary, regardless of good faith in making representation.
3. FRAUD.
Misrepresentation of domestic law, being merely expression of opinion, does not ordinarily constitute predicate for fraud, unless accompanied by inequitable conduct inducing another to rely and act thereon.
4. FRAUD.
Misrepresentation of domestic law made by one who has or professes to have knowledge of law superior to that of one to whom misrepresentation is made, thereby inducing such person to rely and act on misrepresentation, is basis for relief on ground of fraud.
5. INSURANCE.
Evidence that release executed by beneficiary of life policy was induced by false representation of adjuster that no recovery could be had on policy on ground of false answer in application that insured did not drink intoxicants to excess held to present jury question, as against contention that misrepresentation was one of law.
6. INSURANCE.
In action on life policy, evidence held to present jury issue whether beneficiary killed insured in necessary self-defense, as against claim that insured was murdered by beneficiary.
7. INSURANCE. Whether insured drank intoxicating liquors "to excess" held for jury as respects right to recover on life policy.
The words "to excess" in this connection are equivalent to "excessively" or "intemperately."
8. INSURANCE. If beneficiary killed insured in self-defense against insured's unprovoked attack with deadly weapon, death was not "accidental" within double indemnity clause of life policy.
Double indemnity clause of the policy provided for payment of double amount of face of policy in case of death resulting solely from bodily injuries effected directly and exclusively by external, violent, and accidental means, and that such double indemnity benefit should not be payable if death resulted directly or indirectly from commission of a felony.
9. INSURANCE.
If insured did not assault beneficiary of life policy, and gave her no reason to believe her life was in danger, or that she was in great bodily harm, beneficiary in killing insured would be guilty of murder, and could not recover under double indemnity clause of life policy.
10. INSURANCE.
Where, under evidence, jury could have found only that insured's death was not accidental, or that he was murdered by beneficiary, insurer's request for directed verdict, as respects right to recover under double indemnity clause of life policy, should have been granted.
APPEAL from circuit court of Washington county. HON. S.F. DAVIS, Judge.
Percy Farish, of Greenville, for appellant.
A peremptory instruction in favor of the defendant should have been granted because the plaintiff signed the release for a good and valuable consideration and this release was not procured by fraud, and because the insured had made a material misrepresentation of fact as to his drinking in his application for insurance and the insurance would not have been issued had he truthfully answered the questions as to his excessive drinking.
A. V. Ry. v. Kropp, 129 Miss. 616; Pilot Life Ins. Co. v. Wade, 153 Miss. 874; Rowe v. Fair, 157 Miss. 326; Insurance Co. v. Elmore, 111 Miss. 137.
We have found no Mississippi case deciding the question of whether questions and answers concerning excessive drinking in a life insurance policy are material to the risk; but there are many cases holding that questions and answers as to the previous health of the insured are material to the risk.
Williams v. New York Life, 132 Miss. 345; Hope v. Insurance Co., 103 Miss. 269.
Our own court has recently expressed its wish for its decisions to be consonant with those of the federal court, particularly our own Fifth Circuit. That circuit has decided recently that false representations of an answer as to use of alcoholic liquors are material to the risk and sufficient to warrant the cancellation of the policy.
Phillips-Morefield v. Life Ins. Co., 66 F.2d 29; Union Indemnity v. Dodd, 21 F.2d 709; Jeffries v. Economical Mut. Life, 22 L.Ed. 833.
We have found no case holding that a representation as to excessive use of liquor was not a representation as to material fact. When is an answer material to a risk is a question for the court and not for the jury unless the facts are in dispute.
Volunteer State Life v. Richardson, 26 A.L.R. 1270; Aetna Life v. Davey, 31 L.Ed. 315.
Misstatements of the applicant as to the use of stimulants, even though such representations are not made warranties they are material to the risk, and substantial falsity therein avoids the policy.
37 C.J. 453.
We submit the insured's answer was false and materially affected the risk under the policy and therefore the policy is void as the company's agent stated to plaintiff, Mrs. Nunnery, and no recovery can be had under it and a peremptory instruction in favor of the defendant should have been granted on this ground.
Double indemnity under the terms of the policy is not recoverable in this case because the death of the insured resulted directly or indirectly from committing a felony.
We claim he was guilty of assault and attempt to kill. Appellee claims it was for the jury to say what his intent was. We rejoin that there was no evidence on which the jury could base a finding of non-felonious intent. The mere pointing of the pistol is prima facie evidence of intent to kill.
Jeff v. State, 37 Miss. 321; 26 Century Digest, sec. 263; 10 Dec. Digest 1906, sec. 257; 12 2nd Dec. Digest, sec. 145; Lanier v. State, 57 Miss. 102.
Double indemnity cannot be recovered in this case because the death here was not caused by accidental means.
Meister v. General Accident Co., 179 P. 913, 4 A.L.R. 718; Georgia Casualty v. Mills, 73 A.L.R. 408, 156 Miss. 853; Mutual Life v. Sargent, 51 F.2d 4; Occidental Life Co. v. Holcomb, 10 F.2d 125; 37 C.J. 576, sec. 341; Lavender v. Life Ins. Co., 171 Miss. 169.
In Griffith's Chancery Practice the general rule is expressed that fraud must be charged in terms of "fact and must be proven by the facts and the proof must be clear and convincing." The allegations must be specific and the proof must be greater than a preponderance of the evidence.
Griffith's Chancery Practice, sec. 589; Willoughby v. Pope, 101 Miss. 812.
We have searched the authorities to find whether the adjuster's statement that the second policy as well as the first policy was void because of a false misrepresentation in the application to the first policy, which was also material to the risk in the second policy, was accurate as a question of law. We have found no case in any court which has raised the precise point. But we have found a reference to two cases, the text of which we have been unable to see, which tends to support the adjuster's theory.
27 A.L.R. 964; Lanigan v. Prudential Ins. Co., 63 Hun. 408, 18 N Y Supp. 287; Emlaw v. Travelers' Ins. Co., 108 Mich. 554, 66 N.W. 469.
Apparently these cases hold that an insurance company is charged with knowledge of the existence and terms of a policy it has previously issued to the insured and cannot plead as a defense to a second policy issued by it to the same insured a statement that the insured had no other insurance in that company. The statement of the insured in the second policy was untrue, but the court held that it did not deceive the insurer because the insurer, having already issued a policy to the insured, knew that his statement was untrue. In other words, the insurance company is charged with knowledge of the first policy. Is not the converse equally logical that the insured himself is charged with the knowledge of the existence and terms of the first policy? The adjuster's judgment that the second policy was void because of false information given in the first policy, which continued to be false at the time the second policy was issued, seems to us a sound judgment; certainly it is a judgment reasonable in itself, honest and one not controverted by any authority we have been able to find. If an insurance company is estopped from denying knowledge gained by a first policy in defending a second policy, it should be allowed to use knowledge gained from a first policy in defending a second policy.
Ramsey Russell and Wynn, Hafter Lake, all of Greenville, for appellee.
In the present suit, the issue of whether or not the release was a valid, legal release was submitted to the jury under proper instruction; and the jury, by its verdict, held that it was not valid or binding on the appellee. One cannot read the evidence in this record without being entirely convinced that the jury reached the only possible verdict in this case. We state that the findings of this jury should not be reversed.
Davis v. Ellzey, 88 So. 630, 126 Miss. 789; Kansas City M. B.R.R. Co. v. Chiles, 38 So. 498, 86 Miss. 361; Huff, et al. v. Bear Creek Mill, 77 So. 306, 116 Miss. 599 ; 12 R.C.L. 444; A. V.R.R. Co. v. Jones, 19 So. 105, 73 Miss. 110.
Statements as to sobriety, temperate habits, use of intoxicating liquors, etc., usually relate to the time the insurance was issued, and for a reasonable period prior thereto, and not to the insured's whole past life, especially where the inquiry relates to a specific period, or to his future term of life. So, it is said that the question, "Do you use alcoholic stimulants?" refers to the then present time.
The meaning of the word "excess," as used in a question dealing with the use of intoxicating liquors, is largely a matter of opinion, depending upon the capacity of the individual, the liberality of view entertained, the time, the place, and the occasion.
4 Couch, Cyclopedia of Insurance Law, sec. 884, pages 2912 and 2915; Provident Savings Life Assurance Society Case, 102 Fed. 855, 43 C.C.A. 25.
Mistakes of a person with respect to his own private legal rights and liabilities may be properly regarded, — as in great measure they really are — and may be dealt with as mistakes of fact.
A. V.R.R. Co. v. Jones, 19 So. 105, 73 Miss. 110; 2 Pom. Eq. Jur., pars. 841-850.
The rule now often applied is tensely summed up by the Iowa Supreme Court in the statement that a "party cannot falsely assert a fact to be true and induce another to rely upon such statement to his prejudice, and thereafter hide behind a claim that he did not know it was false at the time he asserted it."
Haigh v. White Way Laundry Co., 164 Ia. 143, 145 N.W. 473, 50 L.R.A. (N.S.) 1091; Jacobson v. Chicago, Milwaukee St. Paul R.R. Co., 132 Minn. 181, 156 N.W. 251, Ann. Cas. 1918A 355.
It appears to us that opposing counsel's chief reliance on the question of sustaining this release is based on an erroneous proposition of law, namely, that it was incumbent on the appellee to prove that the agent must have had an evil intent, or at least a knowledge that his representations were false and fraudulent.
It was not necessary for this agent to have known that these representations were false or fraudulent, in order for them to have a binding effect.
A. V. Ry. v. Jones, 19 So. 105, 73 Miss. 110.
The jury's finding that this release was procured by fraud is amply sustained by the proof in the record.
Kansas City M. B. Ry. Co. v. Chiles, 38 So. 498, 86 Miss. 361.
The distinction between a representation and a warranty is clearly pointed out in 14 R.C.L. 1027, and it is there stated that "another difference between a warranty and a representation is that a warranty must be strictly true and a representation need be only substantially true."
Metropolitan Cas. Ins. Co. v. Cato, 74 So. 118, 113 Miss. 303; Provident Savings Life Ins. Assn. v. Hadley, 102 Fed. 856.
We believe there was enough evidence in the record to justify the jury's verdict that a felony was not being committed; and certainly, if there was enough evidence in the record to justify the jury's verdict, then there was enough evidence in the record to prevent the judge from granting the appellant a peremptory instruction.
Authorities universally hold that, in judging whether or not the insured committed a felony, the question is, not what the party assaulted thought, but that the elements of the crime must be judged by the acts and conduct of the person alleged to be committing the crime.
Lamar v. State, 63 Miss. 265; Rainer v. State, 31 Miss. 489, 33 So. 19; Price v. U.S., 156 Fed. 950.
An accurate statement of the majority rule seems to us to be that the present ability to execute an unlawful intent is necessary to constitute an assault.
State v. Godfrey, 17 Or. 300, 20 P. 625, 11 Am. St. Rep. 830; People v. Sylva, 143 Cal. 62, 76 P. 814; People v. Wells, 145 Cal. 138, 78 P. 470; State v. Napper, 6 Nev. 113; Vaughn v. State, 3 S. M. 553; Lott v. State, 68 Miss. 608, 36 So. 11.
The facts in the case at bar do not disclose any such assault with a pistol or that the insured intended entering into mortal combat, and from the evidence the jury was well warranted in believing that the insured did not intend to make a felonious assault upon his wife, and that he had no reason to believe or anticipate that as a result of his actions he would be shot by his wife.
Fidelity Casualty Co. v. Carroll, 143 Fed. 247; Lovelace v. Traveler's Protective Ins. Assn., 126 Mo. 104, 30 A.L.R. 209; Hutcherson v. Woodmen of the World, 112 Tex. 551, 281 S.W. 491, 28 A.L.R. 623; Employees' Indemnity Corp. v. Grant, 271 Fed. 136, 20 A.L.R. 1116; Mutual Life v. Sargent, 51 F.2d 4.
We respectfully direct the court's attention to Hutcherson v. Woodmen of the World, 112 Tex. 551, 261 S.W. 491, 28 A.L.R. 823, in which case practically every legal principle involved in the present suit is there decided after being carefully considered and well reasoned.
The Hutcherson case is clearly in line with the Lovelace case, which seems to be a leading case cited in many states on the question involved. (Lovelace v. T.P.I.A., 126 Mo. 104, 30 L.R.A. 209). In this case the facts seem to be that the insured entered a hotel in Hattiesburg, Mississippi, as a guest, and that he found there a man who was in a more or less intoxicated condition and who was cursing; that he attempted to have him refrain from cursing, and that after an altercation the insured attempted to forcibly eject this man from the hotel; that the insured did not know the man was armed at the time that he, the insured, started the difficulty, and had no reason to anticipate that his death would follow; but that, during the combat, the insured was mortally wounded; and the court held that, even though his death was the result of the deliberate and intentional shooting of the insured by another person, nevertheless his death, insofar as the insured was concerned, was accidental and permitted a recovery.
Union Casualty S. Co. v. Harroll, 98 Tenn. 591, 60 Am. St. Rep. 873; Erb v. Commercial Mutual Accident Ins. Co., 232 Penn. 215, 91 A. 207; Hester v. Fidelity Casualty Co., 69 Mo. App. 186; Mutual Life v. Sargent, 51 F.2d 4; Fidelity Casualty Co. v. Johnson, 17 So. 2, 72 Miss. 333; Smith v. New York Life Ins. Co., 21 F.2d 281.
The jury was well warranted in believing, from the evidence, that, even conceding for the sake of argument that the insured was the aggressor, nevertheless he could not in the circumstances have reasonably anticipated he would be killed. The jury, under proper instruction, so decided, and we do not believe their verdict should be disturbed.
Occidental Life Ins. Co. v. Holcomb, 10 F.2d 125; Baker v. Supreme Lodge K.P., 60 So. 333, 103 Miss. 374; Empire Life v. Gee, 60 So. 90; Employers' Indemnity Corp. v. Grant, 271 Fed. 136; Hutcherson v. Sovereign Camp of the Woodmen of the World, 28 A.L.R. 32.
Argued orally by H.P. Farish, for appellant, and by Jerome S. Hafter, for appellee.
The appellee secured a judgment against the appellant on a life insurance policy of one thousand dollars, issued by the appellant to the appellee's husband, Lane Nunnery, in which she was the beneficiary. The policy contained a double indemnity clause; and there was a verdict and judgment for two thousand dollars.
The appellant requested, but was refused, a directed verdict as to its liability at all, and as to its liability on the double indemnity clause. In support of its contention that a general verdict should have been directed for it, the appellant says that the evidence discloses (1) that it paid the beneficiary, the appellee, the sum of five hundred dollars in full settlement of any claim she might have against it under the policy; (2) that the insured made a false answer to a material question in his application for the policy. As to the settlement with the appellant, the appellee says that her agreement thereto was fraudulently obtained by a representative of the appellant.
1. Some time after the death of the insured, a special agent of the appellant called upon the appellee at her home where she was with only her children, one of whom was seventeen years old, and another fifteen years old. What then occurred thus appears in the testimony of the appellee without contradiction by the appellant:
"On the morning of January 25, 1935, about eleven o'clock a man walked upon on the porch, knocked and I went to the door and he said: `John K. Cooney is my name, I am representing the Penn Mutual Life Insurance Co. from the home office in Philadelphia.' I invited him in and he come in and after he warmed himself up a bit he said `My business this morning is in regard to the policies your husband held in the Penn Mutual Life Insurance Co.' and he said: `Would you mind if the children left the room?' I said `No not at all' and they went into the other room. He said `Mrs. Nunnery, it is my unpleasant duty to inform you your policies are no good.' I said `Do you mean they are no good' and he said `All the Company lawfully owes you on these policies is the premiums you paid out' and I said `Why is it that way' and he said `Do you have the policies' and said `Would you mind getting them' after I said `Yes, I have them,' and I said `No' and I got out the policies and he took the first policy made out in April and turned to the application sheet and pointed out one question to me.
"Q. See if you can find that question? A. Yes. `Have you ever used intoxicating liquor to excess?'
"Q. What is the number of that question? A. It is number 13. `Have you ever used intoxicating liquor to excess?' and he said Mr. Nunnery's answer to that question was `No' and he said `The Company has proof Mr. Nunnery has used intoxicating liquor to excess during his life.'
"Q. Did he tell you that voided both policies or one policy? A. Both. . . . He said `By law the company only owes you the premium paid out on both policies.' He said `They understand the circumstances and are in sympathy with you and told me to offer you a settlement of $500 for the release on these policies' and I thought it over a minute.
"Q. Did he tell you anything about what was meant by excess — as to why that policy was void? A. He said being drunk in his lifetime was drinking to excess.
"Q. Mrs. Nunnery, had you ever had occasion to read a life insurance policy or did you know anything about life insurance policies at all? A. No sir, I never read the policy over.
"Q. Have you ever had a policy on your own life? A. No sir.
"Q. Have you ever had any dealings at all with life insurance policies? A. No sir.
"Q. What did Mr. Cooney say about his occupation? A. He said that was his business settling and adjusting policies for the Penn Mutual Life Insurance Co.
"Q. Were you taken by surprise when he told you this policy was void? A. Yes sir.
"Q. Did he say anything about when he had to leave? A. Yes sir. He had a printed release right there and he told me to read it over and told me `I would like for you to decide as soon as you can, I am leaving this evening for Birmingham and from Birmingham, fly straight to my home' and he said he wanted to go home as soon as possible.
"Q. What did he say if you didn't sign that release what probably would happen? How much would you get? A. He said I could either sign the release or the company would only owe me the premiums.
"Q. Did you have confidence in this insurance agent? A. Yes sir.
"Q. Did you believe he was telling the truth? A. Yes sir."
The appellee then agreed to the offered settlement, received a check from the special agent for five hundred dollars, and executed a release to the appellant from liability on the policies. Thereafter, on the same day, after consulting an attorney, she notified the appellant that she would repudiate the settlement, offered to return the check, and, on the offer being refused, did not cash the check. The appellant introduced no evidence as to the use by the insured of intoxicating liquor, but it appears from the testimony of the appellee that the insured, prior to the issuance of the policy, drank intoxicating liquor at irregular, though at times not infrequent, intervals, and was at times under the influence thereof, though not drunk, except probably (the evidence being somewhat in conflict thereon) on one occasion.
The appellant had issued two policies to Lane Nunnery, payable to the appellee. The application for the one here sued on contained the question and answer hereinbefore set forth, but the other did not.
The representation made by the appellant that the negative answer to the question, "Have you ever used intoxicating liquor to excess?" would void both policies was, of course, untrue, for the application for one of them contained no such question and answer. It was also untrue as to the other policy (the one here sued on), the application for which did contain that question and answer. The word "use" in this connection means "To make use of, esp. habitually or customarily; for a regular custom; to practice or make a practice of." Webster's New International Dictionary (2 Ed.). Doing a thing once does not indicate a custom or habit so to do. Provident Sav. Life Assur. Society v. Exchange Bank of Macon (C.C.A.), 126 F. 360 (a case directly in point); 66 C.J. 75; 37 C.J. 453.
But it is said that the evidence does not disclose that the representation was not made by the agent in good faith. His good faith is not the test. If the representation was false, and the appellee was justified in relying upon it, then she agreed to the release under a mistake into which she was led by the affirmative act of the appellant's special agent, and she therefore is not bound thereby. 2 Restatement, Contracts, sec. 502; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Davis v. Heard, 44 Miss. 50.
The appellant says, further, that the misrepresentation was one of law and not of fact. The misrepresentation was akin to, and may be, a misrepresentation of fact; but we will assume, for the purpose of argument, that it was a misrepresentation of law. A misrepresentation of domestic law, which is but a form of the expression of an opinion, does not ordinarily constitute a predicate for a fraud. For it to do so, it must be accompanied by some inequitable conduct by the person making it, which induced another to rely and act thereon. 2 Pom. Eq., secs. 842-847. One instance of such conduct is where the maker of misrepresentations has or professes to have knowledge of the law superior to that of a person to whom the representation is made, and thereby induces such person to rely and act on the misrepresentation. 2 Restatement, Contracts, sec. 474, comment d; Restatement, Torts (Ten. Draft No. 13), subd. 2 of sec. 621, comment d; Ellis v. Gordon, 202 Wis. 134, 231 N.W. 585; Allison v. Doerflinger Co., 208 Wis. 206, 242 N.W. 558; White v. Harrigan, 77 Okla. 123, 186 P. 224, 9 A.L.R. 1041; Bigelow on Frauds, 487 et seq.; 3 Williston on Contracts, secs. 1495-1591; 26 C.J. 1209; 12 R.C.L. 296; Smith on Law of Frauds. sec. 15; 6 Couch, Cyc. of Ins. Law, sec. 1448. Such is the case here; therefore the appellant was not entitled to a directed verdict on this issue.
2. Was the appellant entitled to a directed verdict on the ground that the insured was murdered by the appellee? The evidence as to the cause of the insured's death was, in substance, that, when angry with the appellee and probably under the influence of intoxicating liquor, the insured approached the appellee with a pistol in his hand and either pointed it at her or was raising it for that purpose, whereupon the appellee immediately shot and killed him with a shotgun that she had procured for protection against him. This evidence warrants a finding by the jury that the appellee killed the insured in necessary self-defense; consequently, the appellant was not entitled to a directed verdict on this issue.
3. The application, as hereinbefore set forth, for this policy, contained the following question and answer: "Q. Have you ever used intoxicating liquor to excess? A. No." The appellant says that the evidence discloses that this answer was false. The evidence as to the use of intoxicating liquor by the insured has been hereinbefore set forth, and, as there said, being drunk once does not of itself alone indicate the use of intoxicating liquor to excess.
The words "to excess" in this connection are equivalent to "excessively" or "intemperately." "We do not know of any established legal definition of those words. As they relate to the customs and habits of men generally in regard to the use of intoxicating drinks, and as the observation and experience of one man on that subject is as good as another of equal capacity and opportunities, their true meaning and signification would seem to be a question addressed rather to the jury than to the court. While there may be on one hand such a clear case of intemperate habits as to justify the court in saying that such and such facts constitute a condition of habitual intemperance, or on the other such an entire absence of any proof, beyond an occasional indulgence in the use of ardent spirits, as to warrant the opposite conclusion, yet the main field of inquiry, and the determination of the question within it, must be submitted to the jury, and the question on this submission must be decided by them." Northwestern Mut. Life Ins. Co. v. Muskegon Nat. Bank, 122 U.S. 501, 7 S.Ct. 1221, 1223, 30 L.Ed. 1102.
The evidence here is not such as to justify a directed verdict for the appellant.
4. This brings us to the double indemnity clause of the policy, which is as follows:
"The Penn Mutual Life Insurance Company of Philadelphia agrees to pay One Thousand Dollars, in addition to and together with the face amount of this Policy, upon receipt of due proof that the death of the insured resulted solely from bodily injuries effected directly and exclusively by external, violent and accidental means, and that such death occurred within ninety days after sustaining such injuries.
"This Double Indemnity Benefit shall not be payable if the death of the insured resulted directly or indirectly . . . from committing a felony. . . ."
The grounds of the appellant's claim that no liability arises under this clause of the policy are: (1) The insured's death was not accidental within the meaning of the policy, for the reason that (a) it resulted from the commission by him of a felony, and (b) was provoked by a deadly assault made by him on the appellee; (2) if not so provoked, the appellee murdered the insured, and therefore cannot recover.
The substance of the evidence of the manner of the insured's death has been hereinbefore set forth, from which it appears that the appellee either killed the insured in self-defense or murdered him; no element of manslaughter appearing therein. If she killed him in self-defense, specifically if she killed him in order to defend herself from an unprovoked deadly attack made by him on her, then his death was not accidental within the meaning of this clause of the policy. Lavender v. Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101; Meister v. General Accident Corporation, 92 Or. 96, 179 P. 913, 4 A.L.R. 718, note thereto. We are not here dealing with the case of a simple assault by the insured, but one with an assault by the insured with a deadly weapon. If the insured did not assault the appellee and gave her no reason to believe that her life was in danger or that she was in great bodily harm, then in killing him she was guilty of murder, and therefore cannot recover. "It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of the party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired." Mutual Life Ins. Co. of New York v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 881, 29 L.Ed. 1000. It is true that the evidence does not disclose, and we will say negatives, any idea that the appellee killed the insured in order to collect the policy. But that fact is of no consequence here. This is in accord with the public policy of this state as reflected by sections 1413 and 3566, Code 1930, which prohibit one who has willfully killed another from inheriting property from him or taking property under a will by him. On the evidence the jury could have found only that the death of the insured was not accidental within the meaning of the policy, or that he was murdered by the appellee. In either event, the appellee cannot recover on the double indemnity clause of the policy. There was nothing, therefore, to submit to the jury on this issue, and the appellant's request for a directed verdict thereon should have been granted.
The judgment of the court below will be reversed insofar as it awards a recovery on the double indemnity clause of the policy, and a judgment will be rendered here for the appellee for one thousand dollars and interest at six per cent per annum from the date of the rendition of the judgment in the court below, together with all costs incurred in the court below.
Reversed, and judgment here for appellee.